Excerpt: - - in our opinion this finding was clearly erroneous and based upon a misapprehension. it has been contended by the learned advocate for the appellant that the effect of the plaintiff's failure to implead jamila begam is to cause the abatement of the whole suit. it must be noted however that this sub-rule clearly lays down that the suit shall abate as against the deceased defendant only. order 1, rule 9 further shows that a suit cannot be defeated by reason of non-joinder of parties and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. parties will pay and receive costs in all courts in proportion to success and failure......one of the mortgagors, and impleading defendants 2-4 as being the heirs of their father jamait shah deceased, and also as being heirs of their uncle safdar shah deceased.2. the suit was resisted upon various grounds with which we are not concerned in this appeal. during the pendency of the suit aadat shah alias nabban. died. he is said to have died on 13th april 1926. no application was made for bringing his legal representative upon the record until 26th january 1927, when the plaintiff made an application stating that saadat shah had died and asking for time to ascertain the names of his heirs. on 3rd february 1927 the plaintiff made a fresh application stating that saadat shah had no heirs other than defendants 2 - 4 his brothers, who were already upon the record, and asking that.....

Judgment:

King, J.

1. This appeal arises out of a suit for sale upon the basis of a mortgage dated 26th August 1912, executed by Jamaiat Shah, Safdar Shah and Saadat Shah alias Nabban, in favour of Tara Chand the plaintiff, to secure a loan of Rs. 500. The mortgagee brought a suit on 25th August 1924 impleading Saadat Shah, one of the mortgagors, and impleading defendants 2-4 as being the heirs of their father Jamait Shah deceased, and also as being heirs of their uncle Safdar Shah deceased.

2. The suit was resisted upon various grounds with which we are not concerned in this appeal. During the pendency of the suit aadat Shah alias Nabban. died. He is said to have died on 13th April 1926. No application was made for bringing his legal representative upon the record until 26th January 1927, when the plaintiff made an application stating that Saadat Shah had died and asking for time to ascertain the names of his heirs. On 3rd February 1927 the plaintiff made a fresh application stating that Saadat Shah had no heirs other than defendants 2 - 4 his brothers, who were already upon the record, and asking that a note should be made that defendants 2-4 are his legal representatives. Saadat Shah left a widow Mt. Jamila Begam, but the plaintiff did not admit that she was the legally married wife of Saadat Shah and therefore made no application for impleading her as one of his heirs. An issue was framed on the question whether Jamila Begam was the widow of Saadat Shah and the trial Court on taking the evidence decided the issue in the affirmative. The question then arose whether the suit had not abated wholly or partly in consequence of the fact that Saadat Shah's widow had not been impleaded. The trial Court found that from the terms of the mortgage deed itself it appeared that Saadat Shah had no interest in the hypothecated property and therefore it was unnecessary to implead Jamila Begam his widow. The trial Court accordingly decreed the claim with costs. Defendant 2, Haibat Shall appealed to the Court below contending that the suit had abated on the expiry of three months from the death of Saadat Shah, as his widow had not been impleaded, and that the trial Court had wrongly held that Saadat Shah had no interest in the property in suit.

3. The Court below agreed with the trial Court in finding that Saadat Shah had no interest in the property hypothecated. In our opinion this finding was clearly erroneous and based upon a misapprehension. Although Saadat Shah had no interest in the hypothecated property at the date of the execution of the mortgage deed in suit, he was undoubtedly one of the heirs of his father, Jamiat Shah, who was one of the mortgagors, and he must have been one of the heirs of his uncle Safdar Shah to the same extent as his brothers, defendants 2-4, who were admittedly heirs of Safdar Shah. It is impossible to hold therefore that Saadat Shah had no interest in the hypothecated property by right of inheritance from his father and his uncle, who were the original mortgagors.

4. It is unnecessary for us to consider whether the application for bringing defendants 2-4 upon the record as heirs of Safdar Shah was within time or not. The position is that Jamila Begam has been found to be the lawful widow of Saadat Shah, a deceased defendant, and the question arises : What is the effect of the plaintiff's omission to implead Jamila Begam as a legal heiress and legal representative of Saadat Shah? It has been contended by the learned advocate for the appellant that the effect of the plaintiff's failure to implead Jamila Begam is to cause the abatement of the whole suit. He contends that the heirs of the mortgagors are jointly liable to pay the whole amount of the mortgage money and that it is not open to the mortgagee to obtain a decree against a portion of the mortgaged property for recovery of the proportionate amount of mortgage money. He has been unable to refer us to any clear authority in support of his contention.

5. On the other hand it has been argued by the learned advocate for the respondent that even though it may be held that the suit has abated as against the deceased defendant Saadat Shah this does not necessarily mean that the whole suit has abated. His contention is that the mortgagee is entitled to a decree for sale of the remaining mortgaged property, that is, the mortgaged property excluding the share of Saadat Shah, and is entitled to sell the remaining portion of the mortgaged property to recover a proportionate amount of the mortgage money. In our opinion this contention is correct and must prevail. It must be held that the suit has abated as against the deceased defendant Saadat Shah under Order 22, Rule 4 (3) as one of his legal representatives namely, his widow has not been brought on the record within the period of limitation. It must be noted however that this sub-rule clearly lays down that the suit shall abate as against the deceased defendant only. Order 1, Rule 9 further shows that a suit cannot be defeated by reason of non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. We have been referred to the ruling of a Bench of this Court in Ganeshi Lal v. Charan Singh [1913] 35 All. 247. In that case a plaintiff mortgagee sued for recovery of the whole of his mortgage money by sale of the whole of the mortgaged property but by an oversight omitted to implead certain persons who had acquired a share in the property subsequent to the mortgage in suit it was held that so much claim should be decreed as was proportionate to the interests of the persons who were before the Court. We agree to the reasoning of this decision which follows an earlier decision of the Calcutta High Court reported in Imam Ali v. Baij Nath Ram Sahu [1906] 33 Cal. 613.

6. In our opinion therefore the plaintiff is entitled to a decree for sale of the property of the defendants other than the deceased defendant Saadat Shah to recover a proportionate amount of the mortgage money. It is necessary that the trial Court should come to a finding on the extent of the share in the property owned by Saadat Shah. We accordingly remand the case to the trial Court for coming to a finding upon the issue. What is the extent of the share in the mortgaged property owned by Saadat Shah deceased? After recording a finding on this issue the trial Court should pass a decree for sale of the remaining mortgaged property, that is, excluding the share of Saadat Shah for the recovery of a proportionate amount of the mortgage money. The remand is under Order 41, Rule 23, Civil P.C. The decrees of both the Courts below are discharged. Parties will be allowed to adduce evidence regarding the issue which we have remitted for decision to the trial Court. Parties will pay and receive costs in all Courts in proportion to success and failure.